APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by Lord Abernethy
ROBERT JOHN CLARK
LEONARD A HIGSON
Act: Shead; Balfour & Manson (for Penman's, Glasgow)
Alt: Johnston, A.D.; Crown Agent
29 January 2004 This is an appeal by way of Stated Case. The appellant was charged with two contraventions of the Road Traffic Act 1988 in the following terms:-
"1. You ROBERT JOHN CLARK being a person disqualified for holding or obtaining a licence to drive a motor vehicle did (while so disqualified) on 17 August 2000 on a road, namely Balmore Industrial Estate, Ashfield Street and other roads, all in Glasgow, did drive a motor vehicle, namely motor cycle whose registered number is to the complainer unknown;
CONTRARY to the Road Traffic Act 1988, Section 103(1)(b).
you ROBERT JOHN CLARK did commit this offence while on bail, having been granted bail on 16 June 2000 at Glasgow Sheriff Court;
2. On 17 August 2000 on a road or other public place, namely places above libelled, you ROBERT JOHN CLARK did use a motor vehicle, namely motor cycle whose registered number is to the complainer unknown without there being in force in relation to the use of said motor cycle by you such a policy of insurance or such a security in respect of third party risks as complied with the requirements of Part VI of the Road Traffic Act 1988;
CONTRARY to the Road Traffic Act 1988, Section 143(1) and (2);
you ROBERT JOHN CLARK did commit this offence while on bail, having been granted bail on 16 June 2000 at Glasgow Sheriff Court."
1. At approximately 5.00p.m. on 17 August 2000 at the locus libelled in charge (1) the appellant was driving a Kawasaki 125 "off-road" trail bike on the road and other public places as specified on the complaint while disqualified from holding or obtaining a licence to drive a motor vehicle.
2. The vehicle is a Kawasaki motor cycle. It is a mechanically propelled vehicle driven by a petrol engine.
3. The Appellant was using the motor cycle on the road and intended to use it on the road. The sheriff narrates in his Note that for all practical purposes these facts were agreed. He goes on to state that the police officers' attention had first been drawn to the appellant by the noise being made by the two-stroke engine of the motor cycle. The appellant was wearing a green motor cycle suit, a green crash helmet and black gloves and was driving the motor cycle on Balmore Road, which was described as the main road heading north out of Glasgow. The officers told the sheriff that at that time in that area there was a particular problem with trail bikes being driven on pavements and on waste ground. A short while later the officers saw the appellant again, this time pushing the motor cycle. When they approached him and asked for his details, he volunteered that he was disqualified from holding or obtaining a driving licence. The officers checked this and found it to be correct. They then arrested the appellant. When cautioned and charged with these offences, he replied, in answer to the first charge: "I didn't think I was in the wrong at all."  Thereafter the appellant told the officers that his father had bought him the motor cycle for £1600 and he had driven it through fields to the area where he was seen. He stated that because it was an "off-road" bike, it did not have to be taxed.  The evidence of the two police officers was the only evidence led by the Crown. After the Crown case closed a submission of no case to answer was made on behalf of the appellant on the basis that the motor cycle was not a motor vehicle in terms of the 1988 Act and therefore sections 103 and 143 did not apply. That submission was repelled. No further evidence was led and, as stated above, after submissions made on behalf of both parties the sheriff convicted the appellant of both charges.  Before this Court counsel for the appellant submitted, first, that from the description of the motor cycle which had been given the Crown had not discharged the onus on it to prove that it was a motor vehicle intended for use on roads as required by the definition of the words "motor vehicle" in the 1988 Act. Alternatively, the description which had been given suggested that it was not a motor vehicle intended for use on roads. The Advocate Depute, on the other hand, submitted that there was enough information to entitle the sheriff to reach the conclusion that he did. The submissions on behalf of the appellant were therefore not well founded.  The term "motor vehicle" is defined in section 185(1) of the 1988 Act as "a mechanically propelled vehicle intended or adapted for use on roads". There was no dispute that the vehicle here, a Kawasaki motor cycle, was a mechanically propelled vehicle and there was no dispute that it had not been adapted for use on roads. The issue was whether it was intended for use on roads.  The description of the vehicle in the findings-in-fact is brief. In his Note the sheriff elaborates to a certain extent. He states that the evidence of the two police officers was that the motor cycle was an "off-road" trail bike. It had "special" (not further defined) tyres, was not registered and therefore carried no registration mark or road tax. It had no lights, indicators or a stop light. The seat was raised much higher than a "normal" motor cycle because of its "off-road" use. Later in his Note the sheriff expresses the view that if one hundred ordinary reasonable "men from the top of the Clapham omnibus" were shown the vehicle and shown it being driven and then asked if they thought it was a motor vehicle, in all probability all one hundred would answer in the affirmative.  The sheriff states that he was referred to passages in Wheatley on Road Traffic Law in Scotland, 3rd Ed. and the Road Traffic Encyclopaedia. He quotes from them. It appears, however, that he was not referred to the source material, namely, the decided cases on the point at issue. In the debate before us we were referred to a number of cases which deal with the point and the appropriate test to apply in deciding it.  The definition of a motor vehicle in section 185(1) of the 1988 Act has a considerable ancestry. It goes back at least to the Road Traffic Act 1930. In MacDonald v Carmichael 1941 JC 27, the issue was whether what was known as a diesel dumper was a vehicle intended for use on roads and therefore a motor vehicle in terms of the statutory definition. After describing what a diesel dumper was, Lord Justice Clerk Aitchison said (at pages 35-36):-
"It is not disputed that a Diesel dumper is a mechanically propelled vehicle. It was maintained for the Crown that on the date libelled dumpers were in fact being used on the public road to convey material along it, and it was said that it could not be maintained that in being so used they were being used for a purpose for which they were not intended. Prima facie this contention of the Crown appears in logic to be convincing, but it really begs the question. The statute does not say 'used on roads,' but 'intended or adapted for use on roads.' These words admit of construction, and I think they mean, and were intended to mean, 'intended or adapted for use on roads' in the sense of use for ordinary road purposes. I think that they were not intended to cover vehicles of the kind with which we are dealing, which are really part of the contractor's equipment in carrying out the work at the place where it is being done. These Diesel dumpers, although they are propelled along the public road, are really accessory to the mechanical excavators which are used in road construction, although occasionally they may be used apart from the excavators simply for conveying road material. They are not driven like ordinary motor vehicles, the driver must either look along the side of them when he is driving or be guided where he is going, and they are altogether unsuitable for the work of ordinary road transport. They are, in my opinion, in a different category from the contractor's motor lorry, which may be used for conveying excavated material, but which from its nature and construction is intended or adapted for ordinary road use on the public highway. I think these skips are simply large tubs on wheels, mechanically propelled no doubt, and forming part of the contractor's plant, but not motor vehicles in the sense of the Act. I am, accordingly, of opinion that the learned Sheriff-substitute was right in holding in law that these Diesel dumpers did not fall within the definition of the statute...".
The other members of the Court agreed. This case was followed by the Divisional Court in England in Daley v Hargreaves 1961 1 All ER 552 where the vehicles in question were also dumpers. It was, however, distinguished in Woodward v James Young (Contractors) Limited 1958 JC 28. That case concerned an ordinary Ferguson motor tractor of the kind commonly used for agricultural purposes. Lord Justice Clerk Thomson, with whom the other members of the Court agreed, said (at page 35):-
"I am ... of the view that this tractor is a vehicle intended for use on roads. It seems to me to be something in entire contrast to the Diesel dumper. The Lord Justice Clerk regarded the dumper as a glorified tub on wheels and as altogether 'unsuitable' for the work of ordinary road transport. It is quite impossible on the facts found to regard this Ferguson tractor as a mere adjunct to road excavation. No doubt it may have its drawbacks when it comes to driving it on a road ..... But, if it lacks the amenities of a Bentley, it has its uses both for hauling and for carrying and it is impossible to say that it is only something in the nature of a farmyard accessory, which is not meant to be on a road. The features which tend to differentiate it from a vehicle which is ordinarily confined to the roads.... are accidental rather than essential. Its essential character is such that it can go almost anywhere, but its versatility does not mean that it is not intended for use on roads. Indeed this versatility has the opposite effect and is in sharp contrast to the limited and eclectic function which is performed by a Diesel dumper."
"Thus, in the ordinary case, it seems to me that there will be little difficulty in saying whether a particular vehicle is a motor vehicle or not. But to define exactly the meaning of the words 'intended or adapted' is by no means easy. For my part, I think that the expression 'intended', to take that word first, does not mean 'intended by the user of the vehicle either at the moment of the alleged offence or for the future'. I do not think that it means the intention of the manufacturer or the wholesaler or the retailer; and it may be, as Salmon J said in Daley v Hargreaves, that it is not referring to the intention as such of any particular purpose. Salmon J. suggested that the word 'intended' might be paraphrased as 'suitable or apt'. It may be merely a difference of wording, but I prefer to make the test whether a reasonable person looking at the vehicle would say that one of its users would be a road user.
In deciding that question, the reasonable man would not, as I conceive, have to envisage what some man losing his senses would do with a vehicle; nor an isolated user or a user in an emergency. The real question is: Is some general use on the roads contemplated as one of the users? Approaching the matter in that way, at the end of the case the justices would have to ask themselves: has it been proved beyond a reasonable doubt that any reasonable person looking at the Go-Kart would say that one of its uses would be a use on the road?".
The other members of the Division Court agreed and that test has been adopted and applied in England ever since. In O'Brien v Anderton 1979 RTR 388 the vehicle concerned was an Italjet motor cycle. In the Divisional Court Lord Widgery C.J. said (at page 392):-
"It looks like a modern motor bicycle. It has the sort of layout which one associates with a motor bicycle. It has the conventional tank for petrol. It has two pneumatically tyred vehicles. It has a silencer and things like that.... It is apparently driven by a 22cc internal combustion engine with a seat and handlebars for carrying its rider, and in the view of the justices it exactly resembled an ordinary motor cycle."
The test enunciated by Lord Parker C.J. in Burns v Currell was quoted with approval and adopted. The decision of the justices that the motor cycle was a motor vehicle in terms of the statutory definition was upheld. In Percy v Smith, 1986 RTR 252 the vehicle concerned was a forklift truck. All the cases to which we have made reference were before the Divisional Court. Again the test enunciated by Lord Parker C.J. was quoted with approval and adopted. The decision of the justices that the truck was a motor vehicle in terms of the statutory definition was upheld. It is also to be noted that it was held in that case that the justices were entitled to take into account the actual use made of the vehicle by the defendant company insofar as it was relevant to determine the question they had to answer.  In Chief Constable of Avon and Somerset Constabulary v F (A Juvenile) 1987 RTR 378, the vehicle concerned was a motor cycle. Again Lord Parker C.J.'s test in Burns v Currell was quoted with approval and adopted. After quoting Lord Parker's dictum Glidewell L.J. went on to say (at pages 382-3):-
"I emphasise that that test is what would be the view of the reasonable man as to the general user of this particular vehicle; not what was the particular user to which this particular defendant put it, either at the time in question or, indeed, generally. In other words, if a reasonable man were to say: 'Yes, this vehicle might well be used on the road', then, applying the test, the vehicle is intended or adapted for such use. If that be the case, it is nothing to the point if the individual defendant says: 'I normally use it for scrambling and I am only pushing it along the road on this occasion because I have no other means of getting it home', or something of that sort".
In that case the justices had held that the description of the vehicle was vague and unsatisfactory. They therefore held that the prosecutor had not discharged the onus of proving that it was a motor vehicle in terms of the statutory definition. That decision was upheld by the Divisional Court. The final case to which we were referred was DPP v Saddington 2001 RTR 227. In that case the vehicle concerned was a motorised scooter known as a Go-ped. The justices held that it was not a motor vehicle in terms of the statutory definition but that was reversed by the Divisional Court. Again the test enunciated by Lord Parker C.J. in Burns v Currell was quoted with approval and adopted. Pill L.J. also quoted the passage from Glidewell L.J. in Chief Constable of Avon and Somerset Constabulary v F (A Juvenile), which we have quoted above. He went on to say that the roadworthiness of a vehicle, which he understood to mean its capability to be used safely on roads, was not decisive on the question whether its use on the road must be contemplated. He also noted that the temptation to use Go-peds on the roads was considerable, notwithstanding their limitations, and added that they provided a ready means of getting through traffic on short journeys on busy urban roads and, for that matter, on less busy suburban roads. At page 238 he said:-
"The test is not whether a reasonable person would use a Go-ped on a road, which in ordinary circumstances he probably would not because of the dangers involved. The test is whether a reasonable person would say that one of its uses would be use on the roads. That person must consider whether some general use on the roads must be contemplated and not merely isolated use or use by a man losing his senses. The design and capabilities of the Go-ped and the possibilities it offers will be considered and considered in the context of an assessment of peoples' wish to get quickly through traffic and the pressure of time upon many people."
The conclusion he came to was that general use of the Go-ped on the roads was to be contemplated. The distributors advised that it should not be used on the roads but that would in practice be ignored to a considerable extent. Surrender to the temptation to use it on the roads would not be an isolated occurrence even though the vehicle might not be roadworthy in the sense that it did not satisfy all the road traffic legislation relating to motor vehicles. He concluded that the Go-ped was a vehicle intended to be used on roads within the meaning of the statute. Bell J. agreed. In our opinion there is no reason why the test enunciated by Lord Parker C.J. in Burns v Currell should not be applied in Scotland as it is in England. It is entirely consistent with what was said in the Scottish cases to which we have referred. Moreover, as the Road Traffic Act 1988 is a United Kingdom statute, it is wholly appropriate for the same test to be applied on both sides of the Border.  In applying the test each case will, of course, turn on its own facts, as the cases to which we have referred show. In this case, the vehicle in question was a Kawasaki motor cycle. It was a mechanically driven vehicle driven by a petrol engine. It was an "off-road" trail bike and was fitted out for that purpose with special tyres, a seat raised much higher than normal and no lights, indicators or a stop light. The fact that it differed from an ordinary motor cycle in these respects, however, is not decisive. Nor is the fact that it might not have been roadworthy for the purposes of the legislation relating to motor vehicles. As with the Go-ped in DPP v Saddington the temptation to use it on the roads must be considerable. It was being used on a road at the time and was intended by the appellant to be so used. It is reasonable to infer from that and from what the appellant said to the police officers that, if he had not been stopped, he would have continued so to use it both that day and thereafter. We are quite prepared to accept that its primary use was as an "off-road" trail bike. However, as Glidewell L.J. pointed out in Chief Constable of Avon and Somerset Constabulary v F (A Juvenile), that is nothing to the point. The test is whether a reasonable person looking at the motor cycle would say that one of its uses would be use on the roads, in the sense that some general use on the roads must be contemplated.  It is true that the description of the vehicle is not as full as it might have been. It would have been preferable if the Crown evidence had provided a fuller description, perhaps supplemented, as in some of the cases mentioned above, by photographs. Having said that, the description which was given is in our opinion sufficient to meet the test.
The questions posed by the sheriff in the Stated Case are:-
"(i) Did I err in repelling a submission of no case to answer by the defence at the close of the Crown case?
(ii) Did I err in finding that said Kawasaki motorcycle was a 'motor vehicle' in terms of the definition of same contained in the Road Traffic Act 1988, as amended by the Road Traffic Act 1991, insofar as that definition applies to contravention of section 103(1)(b) and 143(1) and (2) of the 1988 Act?
(iii) On the facts stated, was I entitled to convict the appellant as libelled?"
We answer the first two of these questions in the negative and the third in the affirmative.